Some things to consider before confessing to that crime you didn’t commit.

O.J. never confessed

I’m involved in a lot of conversations that go something like this:

Me: So, what happened? You: I got arrested.

Me: I know. That’s why you are here. What did you get arrested for? You: Murder, I guess.

Me: You guess? You: Well, I’m not guilty.

Me: Ok. What happened? You: I don’t know. I didn’t do it. I’m not guilty!

Me: Well, after you didn’t murder that guy, then what happened? You: I got arrested.

Me: After you got arrested, did you talk to the police? You: Well, not really.

Me: Not really? You don’t know if you talked to the police? You: Well, I mean, I talked to them, but I don’t think I told them anything.

Me: Can you tell me what you told the police? You: I don’t remember exactly.

Me: You don’t remember? Well, if you were a betting man, what would you bet the police are going to say you told them? You: Probably that I killed that guy.

Me: I see. Did you give them a written confession? You: I mean, I signed some stuff. I don’t remember what it was.

Me: Ok. One of the things you signed… did they ask you to write down your version of what happened? You: Yeah.

Me: Did that form already have a bunch of pre-printed writing at the top and bottom? You: Yeah. It did.

Me: Ok, what did you write? You: I don’t remember… I just know I didn’t do anything wrong.

Me: Did you write that on the paper… that you didn’t do anything wrong? You: Maybe.

Me: Maybe? If you didn’t write that, what do you think you wrote? You: I don’t know.

Me: When I get a copy of that form, is it going to look like you wrote that you might have killed that guy? You: Probably.

Me: Did you put your signature on the form? You: Yes.

Me: Ok. Did you read any of that writing that was pre-printed on the form before you maybe wrote that you might have killed that guy? You: No.

You know how the rest of the story goes, right? I get that written form and it’s got a full admission. I also get a video tape that has a full verbal, sobbing confession. O.J. Simpson never talked to the police. Unless you’re O.J. Simpson, you talked. And I’ve got a client in my office who says he’s not guilty, and that he wants to take back the confessions.

THIS BREAKING NEWS JUST IN: There is no return policy on confessions. Confessions are like kids- you make them and spend the rest of your life being responsible for them. There are no mulligans.

Confessions don’t really ruffle my feathers much, though. I’ve see it all already. When new clients come into my office I’m pretty much expecting that the police will say there’s some sort of confession, and I don’t worry about it. What about the average person, though? Like, the people who will be the jurors for your trial?

The average person can’t possibly fathom admitting to a crime they didn’t do. Weird how that works. Why would anybody say they commit a crime if they didn’t? So, when a newspaper says somebody confessed, things get sticky. When the police reports show up with a written confession, it gets worse. Prosecutors aren’t going to forget about that confession. Just ask Gary Gauger. In fact, those prosecutors might just bring it up at your trial… in their opening, through their witnesses, and then again in their closing.

I’ve been doing this long enough and seen enough police interrogations to be skeptical whenever I hear that a defendant confessed. When I see a press report that the police are saying a suspect “knew things only the killer would know” it makes me want to laugh. It’s harder to be skeptical if the defendant wrote that confession with his own hand, though. Even moreso when there is a video of him writing that confession… with audio of an accompanying oral confession.

But, if the police used all that fancy psychology to get you to confess to something you didn’t do we can get the judge to throw out your confession, right?Maybe. Probably not. In theory, it’s possible to “suppress” a confession. In practice, it’s hard. Despite what the law says, a lot of judges aren’t inclined to save you from you from yourself. It’s not like judges have a hard time winning retention elections by denying motions to suppress, either.

Besides, you know all of that type-written language on the confession form that I mentioned above? It says stuff like, “I’m giving this statement freely and voluntarily,” or “I’m giving this statement of my own free will, without coercion.” See, the police have been doing this a long time. They’ve seen how us defense attorneys work. When we come up with a different angle or argument- like, perhaps, the psychological tactics used could cause false confessions- they respond by adding stuff to the form. Criminal lawyers are going to argue that suspects were coerced? Police are going to add into the form that you weren’t coerced… and you end up agreeing you weren’t confessed before I can even make the argument.

So, you’re in that tiny police interrogation room. There are no decorations. There are three chairs, a small table, and the room is fairly cramped. You’re probably sitting with your back to a wall, and there are two cops in each of the other chairs. They’ve come and left the room several times, and now they’re “giving you one last chance” to write down your version of how you didn’t kill that guy. What should you do?

Until people stop talking to the police, I’ll keep dealing the hand I’m dealt and doing the best for people despite what evidence the police have. Something tells me that the cycle won’t be broken any time soon- the police are going to do their jobs, people are going to talk, and in another month I’ll re-package the same advice (again, again, again) and post it here.